Gee v Deputy Commissioner Stewart - [2012] QCAT 33

CITATION:

Gee v Deputy Commissioner Stewart [2012] QCAT 33

PARTIES:	Nicole Robyn Gee (Applicant/Appellant)
v
Deputy Commissioner Ian Stewart (Respondent)

APPLICATION NUMBER:

OCR259-10

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

30 November 2011

HEARD AT:

Brisbane

DECISION OF:

Hon James Thomas AM QC, Presiding Member
Michelle Howard, Member

DELIVERED ON:

31 January 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondent's decision of 23 September 2010 that Matter 1 was substantiated, and that it amounted to misconduct, is confirmed;

2. The respondent's decision of 23 September 2010 that Matter 2 was substantiated, and that it amounted to misconduct, is confirmed;

3. The respondent's decision of 23 September 2010 that Matter 3 was substantiated, and that it amounted to misconduct, is confirmed;

4. The respondent's decision of 23 September 2010 that Matter 4 was substantiated, and that it amounted to misconduct, is set aside, and in lieu thereof it is determined that Matter 4 is not substantiated;

5. The respondent's decision of 23 September 2010 that Matter 5 was substantiated, and that it amounted to misconduct, is confirmed;

6. The respondent's decision of 23 September 2010 that Matter 6 was substantiated, and that it amounted to misconduct, is confirmed;

7. The respondent's decision of 23 September 2010 that Matter 7 was substantiated, and that it amounted to misconduct is set aside, and in lieu thereof it is determined that Matter 7 is not substantiated;

8. The respondent's decision of 23 September 2010 that Matter 8 was substantiated, and that it amounted to misconduct, is confirmed;

9. The respondent's decision of 23 September 2010 at Matter 9 was substantiated, and that it amounted to misconduct, is confirmed;

10. The sanctions of dismissal imposed by the respondent in respect of Matters 1, 2, 3, 5, 6, 8 and 9 are confirmed.

CATCHWORDS:

POLICE DISCIPLINARY PROCEEDINGS –review of decision of Deputy Commissioner – merits review by tribunal

POLICE DISCIPLINARY PROCEEDINGS – where misuse of donation to Police Citizens Youth Club – where police officer untruthful during disciplinary interview – where failure to account for monies collected – where dishonest application of funds belonging to Police Citizens Youth Club – where misleading application in application for advertised position – where exposed breasts to staff and other person – whether misconduct

POLICE DISCIPLINARY PROCEEDINGS – sanction – where misconduct substantiated

Crime and Misconduct Act 2001, ss 219B, 219G, 219H
Queensland Civil and Administrative Tribunal Act 2009, s 20
Police Service Administration Act 1990, s 1.4
Police Service (Discipline) Regulations 1990, s 9(1)(f)

Aldrich v Ross (2001) 2 Qd R 235
R v Allard [1988] 2 Qd R 269
Peters v R [1998] 192 CLR 493

APPEARANCES and REPRESENTATION (if any):

With the consent of the parties, this matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

This is a review of disciplinary proceedings brought against the applicant Nicole Robyn Gee. Nine charges were brought and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCAT 33
Decision Date: 31 January 2012

CaseChat Overview and Summary

In the case of Gee v Deputy Commissioner Stewart, the applicant, a police officer, sought judicial review of a decision made by the respondent, the Deputy Commissioner of Police, regarding the outcome of a disciplinary process. The applicant was found guilty of various charges of misconduct, leading to his dismissal from the police force. These charges included misuse of donations to the Police Citizens Youth Club, dishonesty in financial matters, and inappropriate exposure. The primary legal issue before the court was whether the Deputy Commissioner's findings of misconduct were supported by substantial evidence, and whether the imposed sanctions were appropriate.

The court found that the Deputy Commissioner's decision to substantiate certain charges of misconduct was supported by substantial evidence, while other charges were not substantiated. The court noted that the evidence demonstrated the applicant's dishonesty and misuse of funds, as well as his inappropriate conduct. However, the court also determined that some of the charges were not adequately proven, leading to a partial overturning of the Deputy Commissioner's decision. The court further examined the proportionality of the sanctions, concluding that the dismissal was a justified outcome given the severity of the misconduct.

The court's reasoning was grounded in a thorough review of the evidence presented during the disciplinary process, and it emphasised the importance of adhering to principles of natural justice and fairness in such proceedings. The court concluded that while the Deputy Commissioner had the authority to make findings of misconduct and impose sanctions, the court had the power to review those decisions to ensure they were lawful and reasonable. The final orders confirmed the Deputy Commissioner's findings on most charges, but set aside the findings on two specific matters, and upheld the sanctions of dismissal for the substantiated charges.

Orders

Orders of the court

1. The respondent's decision of 23 September 2010 that Matter 1 was substantiated, and that it amounted to misconduct, is confirmed;

2. The respondent's decision of 23 September 2010 that Matter 2 was substantiated, and that it amounted to misconduct, is confirmed;

3. The respondent's decision of 23 September 2010 that Matter 3 was substantiated, and that it amounted to misconduct, is confirmed;

5. The respondent's decision of 23 September 2010 that Matter 5 was substantiated, and that it amounted to misconduct, is confirmed;

6. The respondent's decision of 23 September 2010 that Matter 6 was substantiated, and that it amounted to misconduct, is confirmed;

8. The respondent's decision of 23 September 2010 that Matter 8 was substantiated, and that it amounted to misconduct, is confirmed;

9. The respondent's decision of 23 September 2010 at Matter 9 was substantiated, and that it amounted to misconduct, is confirmed;

10. The sanctions of dismissal imposed by the respondent in respect of Matters 1, 2, 3, 5, 6, 8 and 9 are confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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